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Helen D. Miller, Individually and As Executrix of Alton G

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Helen D. Miller, Individually and As Executrix of Alton G 18 Misc.2d 626 (1959) Helen D. Miller, Individually and as Executrix of Alton G. Miller, Plaintiff, v. Universal Pictures Company, Inc. et al., Defendants. Supreme Court, Special and Trial Term, New York County. May 22, 1959. David Mackay​, ​Jesse Climenko​ and ​Herbert L. Scharf​ for plaintiff. Adolph Schimel​ and ​Edgar M. Rubin​ for Universal Pictures Company, Inc., defendant. Cohen & Sandomire (​Henry Cohen​ of counsel), for Decca Records, Inc., defendant. HENRY EPSTEIN, J. Plaintiff is the widow and executrix of the late Glenn Miller, well-known orchestra leader and musician. Miller died in 1944 while in military service. For some years prior to his entry into war activities Miller had created original arrangements of musical selections, had developed a well-known style and performance associated in the public mind with his own name — Glenn Miller. From 1938 to 1944 these musical performances grew rapidly in popular favor. In 1939 and 1941 Miller contracted to grant Radio Corporation of America ("R. C. A." hereafter) exclusive right to use of his name and likeness in producing advertising and selling phonograph records. This exclusive right covered seven of the eight numbers used in the motion picture "The Glenn Miller Story". It covered all but a very few numbers played by Miller's orchestra before he had developed his unique style. The sales by R. C. A. of the individual Miller records of these numbers to the date of the instant action ranged from some 300,000 to over 2 million on all of which Miller, and since his death his estate, have received royalties. Contracts between plaintiff as executrix and R. C. A. have been renewed in the same exclusive form in 1951, and again in 1958, with increasing benefits to plaintiff. Such record sales totalled over 15 million to the date of the complaint herein. Plaintiff and defendant Universal Pictures Company, Inc. ("Universal" hereafter) on July 24, 1952 contracted for a musical motion picture of the life of Glenn Miller, with a sound track to be developed to duplicate as closely as possible the Glenn Miller arrangements and his own orchestra's performance of these numbers. Defendants knew of the R. C. A. "exclusive" record contract with plaintiff. Defendant Decca Records, Inc. knew of the film contract between plaintiff and Universal. Decca owns and controls and at the time covered by this controversy owned and controlled Universal. The president of Universal, Milton Rackmil, was and is president of the parent Decca. Plaintiff, pursuant to the contract, furnished to Universal scores, transcriptions, orchestrations and electrical transcriptions, instrumental parts, etc. of the Glenn Miller orchestra for utilization in the picture. For months Joseph Gershenson, the conductor of the synthetic Glenn Miller orchestra for the picture, studied and "saturated" himself with the Miller style by "repeated playings and analysings of these recordings". He gradually procured as associates in the simulated Glenn Miller orchestra at least "eight instrumentalists from the original Glenn Miller Orchestra; Chummy MacGregor (piano), Roland Burdock (bass), Wilbur Schwartz (alto and clarinet), Richard Piser (guitar), Babe Russin (tenor sax), Rubin Zarchy (trumpet), Paul Tanner (trombone) and Jimmy Priddy (trombone)." With sedulous practice this group sought to achieve its goal, the precise duplication of the original Glenn Miller orchestra, a band which "had a sound like no other * * * with a clarinet carrying the melody in unison with a single tenor saxophone — each instrument playing the tune an octave apart — while the other saxophones supply the divided harmonies * * * a sound which no band has ever surpassed". Universal issued a brochure in which it stressed the sale of "more than 15,000,000 Glenn Miller records * * * when juke box sales hit $150,000,000 * * * one coin out of every three went for a Miller record". The audiences for the renewed Glenn Miller recordings are described by Universal as the "1939" group of teen-agers, "now in their twenties to early forties" and the "1953" audiences, teen-agers, who include Glenn Miller's music as their favorite and who are again to be inoculated with the charm of "Tuxedo Junction", "Pennsylvania 6-5000" and "Little Brown Jug". These and many other features were poured out in advertising, pamphlet and story form by Decca for its records and Universal for the picture "The Glenn Miller Story". Decca advertised the records as "exact duplications of some of the most famous Glenn Miller hits". ​Decca​ exploded its superlatives in promoting the synthetic records in its appeal in these words: "Millions of people will see and love this picture! They will want The Great Miller `sound' from this picture! ONLY THE DECCA RECORDS TAKEN FROM THE ACTUAL FILM CAN GIVE THIS SOUND." The claim of defendants that the Decca record album of Glenn Miller numbers from the picture was primarily intended as a medium for exploiting the picture is wholly nullified by the testimony and evidence in the case. That claim is shown to be a pretense whereby Decca obtained or took from its wholly controlled subsidiary, Universal, a most valuable product available otherwise solely through R. C. A. records. Let it here be noted and stressed that in the Universal contract with plaintiff there is not once that the word "record" or "records" is used and yet there is full cognizance of the exclusive R. C. A. record contract. Decca and Universal contracted for records by Decca from the picture "sound track" intended for use in "promoting" the picture. ​Universal actually granted Decca unlimited commercial phonograph record rights, which plaintiff never gave in the film contract, and which she was powerless to grant.​ Decca and R. C. A. were and are competitors in the record business. The evidence reveals that R. C. A.'s original Glenn Miller recordings were exhibited in many places, both in the U. S. A. and abroad, together with the Decca recordings from the picture sound track. This court, with the consent of both sides, not only listened to the R. C. A. and Decca recordings in the courtroom on a good phonograph — but after court in a private home to the same numbers on an excellent "Hi-Fi" set. The court noted the louder sound of the telephone bells in "Pennsylvania 6-5000" as produced in the sound track record and the variations in the drums and other sounds in the other sound track numbers. Yet, at least for this court, there is no superiority evidenced in the slight variations from the R. C. A. originals. If anything, this court is of the opinion that the original Glenn Miller recordings by R. C. A. are superior — at least in the high fidelity reproduction when played — to the sound track. That the sound track records seek to and do achieve precise simulation of Glenn Miller's original orchestra, a goal which was diligently sought, is unquestioned. There is no doubt that the Universal picture was successful and that the sound track album was indeed a simultaneous financial success to Decca. There is also no doubt that R. C. A.'s "memorial album" of the Glenn Miller records, issued at the same time, was a financial success. Plaintiff's substantial returns from the picture (over $650,000), and her increased royalties from sale of R. C. A. records (from some $20,000 in 1944, the year of Glenn Miller's death, to $247,000 in 1954) cannot be regarded as an argument against her claim against defendants Decca and Universal. The wealth of the victim grants no reprieve to the pickpocket. Testimony and evidence of other film contracts and phonograph recordings as part of the promotion planned for a musical picture production do not assist in the resolution of the instant case where the facts, known to defendants at the time, preclude any conclusion other than a purposeful taking of a valuable property to plaintiff's damage. The fact, stressed in defendants' brief, that "The Glenn Miller style" is "a part of our common musical heritage" adds nothing to the defense on the facts revealed in this case. Defendants' brief also states that "Mr. Gershenson will testify at the trial, and will show that the manuscripts were substantially useless". He did not testify nor was any explanation offered. His deposition was read and does not offer much to the defense except to show that the study of Glenn Miller's original recordings was painstaking. If anything, this adds strength to plaintiff's charge that the Glenn Miller recordings were in truth pirated. We may search the Universal-Miller contract for the picture in vain for the Decca-claimed right to record the simulated Glenn Miller hit tunes. Paragraph (1) of the contract authorizes Universal to "portray or represent" Glenn Miller, his wife "and/or your children" etc. in photoplays and productions. Plaintiff agreed (par. 3) to make available everything necessary for the "preparation and production of said photoplay". This included "all of Glenn Miller's musical compositions, arrangements and orchestrations * * * as well as the right to use or simulate the style, manner and manner of playing of Glenn Miller and/or his orchestra". Nothing of "records" or "recordings" here. Universal is released of claims based on piracy in the advertising or exploitation of the photoplay (par. 5). Defendants place their strongest emphasis on paragraph 12 of the contract. If not found therein, defendants' case completely falls. Paragraph 12 reads: "Without limiting the rights elsewhere herein granted to us, it is further understood and agreed that the following rights are
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